No Motz vs. Motz in Microsoft Appeal

When the federal appeals court hears Microsoft's appeal of the ruling calling for it to ship Java with Windows, it will do so minus Judge Diana Gribbon Motz, since she's married to the judge who ruled on the case.

When the U.S. Court of Appeals for the Fourth Circuit Thursday hears Microsoft Corp.s appeal of a federal judges ruling calling for the company to ship Java with Windows, it will do so without at least one of its members.

The court will hear the appeal of the ruling of U.S. District Judge J. Frederick Motz in the Microsoft case, but his wife, Judge Diana Gribbon Motz—who sits on the Richmond, Va.-based appeals court bench—will recuse herself, say court officials.

Judge Diana Gribbon Motz, a member of the Fourth Circuit, will not sit for the Microsoft appeal because she routinely recuses herself from hearing appeals of rulings made by her husband.

In what amounted to a Christmas present to Santa Clara, Calif.-based Sun Microsystems Inc., Motz granted a preliminary injunction request by Sun and ruled in late December that

Microsoft must provide a Sun-compatible Java virtual machine with each copy of Windows and the Microsoft Internet Explorer browser.

Judge J. Frederick Motz heard arguments on the issue for three days during the week of Dec. 1, 2002, in his courtroom at U.S. District Court in Baltimore.

At the end of the hearing, Motz praised both sides for having made strong cases and said the two legal teams had him going "back and forth" on the issue and that he had not made up his mind as of the end of the hearing.

However, Motz showed some signs of which way he was leaning, even early in the proceedings. Motz called the legal skirmish between Sun and Microsoft a "social issue" and then a "moral issue" and said he believed "Java people have pride," just like Microsoft developers, and have the right to see their technology get a fair shake in the market.

Motz also made reference to former Olympic ice skaters Tonya Harding and Nancy Kerrigan, likening Sun to Kerrigan and Microsoft to Harding.

"Nancy Kerrigan is deprived of the opportunity to compete on two good knees, " he said. "Is there a social value on being able to participate in a market undistorted by your competitor?"

Sun filed its private antitrust suit against Microsoft in March 2002 claiming the software giant used its desktop operating system monopoly to slow and sidetrack Javas momentum as an alternative platform for the hearts and minds of developers. Sun is charging that Microsoft intentionally sought to fragment the market for Java by seeding it with incompatible software. This suit is the second Java-related suit filed by Sun. The first, filed in October 1997, was a contract dispute over Microsofts distribution of Java-compatible technology, which the parties settled in January 2001.